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(S.B.) Sindh High Court, Karachi

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(S.B.) Sindh High Court, Karachi 1 IN THE HIGH COURT OF SINDH AT KARACHI Suit No.333 of 2004 Present: Justice Mrs. Kausar Sultana Hussain Date of hearing : 26.11.2018 For the Plaintiffs : Mr. Ghulam Abbas Soomro, advocate For Defendant No.2 : Mr. Sohail Hayat Khan Rana, advocate. For State : Miss. Fatima Jatoi, State Counsel. Mr. Masood Husain Khan, A.A.G J U D G M E N T -.-.-.-.-.- KAUSAR SULTANA HUSSAIN, J. The plaintiffs have filed the present suit for declaration and recovery of amount of compensation of land with the following prayers : A) Declare that the plaintiffs are lawful owners of the land mentioned below : (i) 2-0 acres land out of Survey No.285, Deh Mehran, Malir Town. (ii) 1-0 acre land out of Survey No.285, Deh Mehran Malir Town, Karachi. (iii) 5-0 acres land out of Survey No.283, Deh Mehran, Malir Town, Karachi and (iv) 6-0 acres land out of Survey No.287, Deh Mehran Malir Town, Karachi. (Total Area is 14-0 acres) B) Declare the impugned orders dated 24.01.2003 and 12.08.2003 (annexure A/10 and A/11) passed by the defendants 4 and 8 as illegal and void. C) Declare that the land acquisition proceedings conducted in respect of the plaintiff’s land noted above are void ab-initio and illegal. D) Direct the defendants 4 and 8 to effect mutation in the Record of Rights Form VII in favour of the plaintiffs above named in respct of the land shown in prayer clause No. (A) indicating them as lawful owners of the said land. E) Direct the defendant No.1 to 3 to make payment of compensation to the plaintiffs above named in respect of the said land to the tune of a sum of rupees 42 (Fourty Two) crores with interest/profit at the Bank rate from the 2 date of acquisition of land till the date of decree and or payment of the compensation. F) Award costs of the suit and G) Any other relief as is deemed fit in the circumstances of suit. 1. The brief facts of the case are that the father of the plaintiff Nos. 1 to 4 namely deceased Mian Muhammad Khalil, expired at Faisalabad on 03.12.1995, leaving behind the above plaintiffs as his legal heirs. The father of the plaintiffs divorced his two wives on account of the domestic differences, namely, (1) Mst. Sarwar Begum (divorced in 1986) died in 2003 from whom plaintiff Nos. 1 & 4 were born and (2) Mst. Mohsina Sultana (divorced in 1967) died in 1992 from whom plaintiff Nos. 2 & 3 were born. It is further averred in the plaint that after the demise of deceased, the plaintiffs traced out two Registered Sale Deed in respect of Urban lands in Deh Mehran, Malir Town, Karachi, as under: a. Registered Sale Deed dated 20.08.1947 (Registration No.317) regarding purchase of two (2) acres of land in Deh Mehran Malir Town, Karachi (Airport) out of Survey No.285 from non-evacuee namely Dr. Hollaram Shivandas Pinjani; b. Registered Sale Deed dated 15.09.1947 (Registration No.470), whereby, land measuring one (1)acres out of Survey No.285, five (5) acres out of Survey No.283 and six (6) acres out of survey No.287 of same Deh (total 12 acres) was purchased from the same Vendor. The above lands were purchased by the deceased father of the plaintiffs after the partition of Indo-Pakistan Sub- Continent and before the enforcement of Pakistan Administration of Evacuee Property Act, 1957 (Act XII/1957), which was enforced with effect from 15.03.1957, as such the entire acquired land is Muslim Property. 2. The genuineness of above noted Sale Deeds was verified by defendant No. 4, Member Board of Revenue from the District Registrar of Properties, Karachi and as per letter/report bearing No. 301/SR/CR/2003, dated 10.06.2003, the Sub- Registrar, Central Record, City Court, Karachi has certified the said Sale Deeds to be genuine documents. It is further averred in the plaint that during the life time, deceased Mian Muhammad Khalil, moved an application dated 15.05.1963 to the 3 Mukhtiarkar, Karachi, which paper has also been traced out alongwith the Sale Deeds wherein the Mukhtiarkar, Karachi was requested to effect mutation in the Record of Rights Form-VII, but no action was taken without any reasonable cause, on account of fraud, misrepresentation and suppression of material facts mutation was not made to the plaintiff’s father and as well as to the plaintiffs and under the Second Proviso to Section 135-C, of the Repealed Sindh Land Revenues Code, 1879, then applicable, the persons acquiring rights by virtue of the Registered Documents were exempted from giving the intimation of acquisition of such rights. It is also averred in the plaint that after tracing out the Sale Deeds, the plaintiffs applied to the District Office (Revenue), Karachi by application dated 20.02.2002, who had seen and examined the Original Sale Deeds and forwarded the request of the plaintiffs to D.D.O (Revenue), Malir Karachi/defendant No.7, vide his letter No. D.O (REVENUE)/K/L-B/644 dated Nil for orders and thereafter another application also moved to DDO (Revenue) through their Advocate on 16.03.2002, but nothing happened, thereafter the plaintiffs through an application dated 24.01.2003 also requested the Mukhtiarkar/defendant No.8 to effect mutation in the Record of Rights in their favour, which was dismissed, vide impugned order dated 24.01.2003 on the ground that land had been acquired by Civil Aviation Authority/defendant No.2 and they could not acquire the plaintiff’s land without payment of adequate compensation, thereafter the plaintiffs have filed a Revision Application under Section 164 of the Land Revenue Act 1967, against the said impugned order before defendant No.4/Member Board of Revenue (Land Utilization) Karachi, who rejected the same by order dated 12.08.2003 and that both impugned orders dated 24.01.2003 and 12.08.2003 passed by defendants No.4 & 8/Mukhtiarkar Malir, Town/Member Board of Revenue were illegal and void, therefore C.P. No. D-1388 of 2003 was filed before this Court with the prayer to set aside the same, which was dismissed on 26.02.2004, with the observation that suit was the proper remedy. It is further averred in the plaint that the impugned orders dated 24.01.2003 and 12.08.2003 are illegal, void and 4 derogatory to the provision of Article 24 of the Constitution of Islamic Republic of Pakistan, 1973 in as much as the plaintiffs being lawful owners of the land, could not be deprived of the land without payment of compensation and therefore the same are liable to be set aside and the non-compliance of mandatory provision of Section 135/C and 135/D of the repealed Sindh Land Revenue Code, 1879 read with Section 42 of the Sind Land Revenue Act, 1967 has resulted in the miscarriage of justice depriving the plaintiffs of the ownership of their most valuable lands causing denial of the payment of compensation according to law. Therefore setting aside these impugned orders would certainly discourage and avoid the perpetuation of illegality on the record. The Member Board of Revenue/defendant No.4 has avoided the determination of the dispute according to law and as such the impugned orders violated the mandatory provisions of Section 44 of the Land Revenue Act. 1967 relates to the determination of disputes by the Revenue Officers by holding detailed enquiry as per prescribed procedure which could not be dispensed with and therefore the said orders are liable to be struck down and finding/admission of the genuineness of the Sale Deeds it was incumbent upon defendant No.4 MBR(LU) to hold detailed enquiry into the circumstances regarding non-payment of the compensation to the plaintiffs after perusal of the record and hearing all parties including the defendant/Civil Aviation Authority, which has not been done. It seems that by willful default to make mutation in the Record of Rights Form-VII, in favour of plaintiffs’ father, the intention was to misappropriate the amount of compensation of land mala-fide, which smacks of fraud and misrepresentation. Their land situated within the Karachi Civil Airport, is a very valuable land and the present market value thereof is not less the Three Crores rupees per acre and as such the plaintiffs are entitled to receive compensation to the tune of at least a sum of Rs.42 crores with interest/profit/at the Bank rate from the date of acquisition till the date of decree and or payment of the compensation and the land acquisition proceedings conducted in respect of the plaintiff’s land at the instance of Civil Aviation Authority are void and illegal 5 in as much as the plaintiffs should have been associated with the said proceedings. Therefore, the plaintiff’s land has been taken away illegally and in a circumvented manner. 3. After service of notices upon the defendants, they have submitted their respective written statements, except the defendant No.5, 6 and 7, who vide order dated 23.11.2004 were debarred from filing of their written statements. The defendants No.1 and 3 (Government of Pakistan through Secretary, Ministry of Defence, Islamabad and Military Estate Officer, Government of Pakistan) filed their joint written statement, while defendants No.2, 4 and 8 have submitted their separate written statements. 4. The defendant Nos.1 and 3 in their written statement have stated that as per available record of (photo) copies of correspondence available in the record of defendant No.3, revealed that the Survey numbers mentioned in the paras 2(a) & (b) of the plaint, viz; Survey No.285, Deh Mehran, Malir Karachi & Survey No.
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